Prime Minister of India: The Real Executive
by Negi Mohita Indian Constitution
Prime Minister of India: The Real Executive! If the President is the Constitutional Head of the State, the real executive is the Council of Ministers established by Article 74(1) with the Prime Minister at the head to aid and advise the President in the exercise of his functions and he is constitutionally required to always act in accordance with such advice. The question whether any, and if so what, advice was tendered by Ministers to the President cannot be inquired into by any court. Article 361 (1) also provides that the President shall not be answerable to any court for the exercise and performance of the powers and duties of his office. The question of Ministerial advice cannot be brought before courts and personal immunity from legal action, whether during office or thereafter, is given to the President for any act done or purporting to be done by him in the exercise and performance of those powers and duties. It also establishes that the relations between the President and his Ministers are confidential, before 1978. The Constitution simply provided for the Council of Ministers and the use of the term Cabinet in the context
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of the machinery of government was nowhere mentioned. The Constitution (Forty-fourth Amendment) Act, 1978, has institutionalised the term Cabinet by recognising it and distinguishing it from other Ministers who are members of the Council of Ministers. The newly inserted Clause (3) in Article 452 provides that the President shall not issue a Proclamation of Emergency or a Proclamation varying it “unless the decision of the Union Cabinet (that is to say, the Council...